Preview of our top selling Revenue Sharing Agreement
Via Net Works - Distribution & Revenue Sharing Agreement
EXHIBIT 10.10
DISTRIBUTION AND REVENUE SHARING AGREEMENT
THIS AGREEMENT is made as of this 30th day of June, 1999 (the "Effective Date")
BETWEEN: TRELLIX CORPORATION, a corporation organized under the laws of
Delaware, having its principal place of business at 51 Sawyer
Road, 5th Floor Waltham, MA 02453 ("TRELLIX")
AND: VIA NET.WORKS, INC., a company incorporated under the laws of
Delaware having its principal place of business at 12100 Sunset
Hills Road, Suite 110, Reston, VA 20190, on behalf of itself and
its wholly-owned or controlled subsidiaries identified on the
attached Schedule 1, which may be supplemented and amended from
time to time by agreement of the parties (collectively, "VIA
NET.WORKS").
WHEREAS TRELLIX has developed the Software (as defined below), and is engaged in the business of distributing and marketing the Software;
WHEREAS VIA NET.WORKS possesses sufficient technical and commercial expertise to market and distribute effectively the Software and offer first-line support services to End-Users and Authorized Dealers (as defined below) in accordance with the provisions contained herein; and
WHEREAS TRELLIX wishes VIA NET.WORKS to actively and effectively promote the licensing of the Software in the Territories (as defined below);
WHEREAS VIA NET.WORKS engages in commercial web hosting, whereby users post web site content to a storage device and such site content becomes posted and accessible to the World Wide Web thereby;
WHEREAS VIA NET.WORKS and TRELLIX desire to share revenue generated by VIA NET.WORKS through the acquisition of End-Users who have created web sites using the Software and a predesignated VIA NET.WORKS one-step publish feature of the Software;
NOW THEREFORE, the parties agree as follows:
1. DEFINITIONS
1.1 "Authorized Dealer(s)" shall mean those dealers and remarketers
authorized by VIA NET.WORKS and TRELLIX to distribute the Software
solely to End-Users pursuant to a Dealer License Agreement.
1.2 "Confidential Information" shall have the meaning set forth in
Section 10.1 hereof.
1.3 "Dealer License Agreement" shall mean a written agreement made
between VIA NET.WORKS and an Authorized Dealer that authorizes an
Authorized Dealer to distribute Software to End-Users pursuant to
Section 2.3 hereof.
1.5 "Software" shall mean computer software programs, in object code
format, proprietary to TRELLIX or its licensors, identified in
Appendix "A", including Documentation, and any Updates, Maintenance
Patches and Improvements thereto.
1.6 "Documentation" shall mean all instructional or supplementary
materials related to Software and provided by TRELLIX to VIA
NET.WORKS for use in connection with Software or included as `online'
help from within the Software.
1.7 "End-User" shall mean a single licensee that obtains a right to use
the Software pursuant to the terms and conditions of an End-User
License Agreement, and not for redistribution, remarketing, or third
party service use.
1.8 "End-User License Agreements" shall mean the end-user software
license agreements entered into between TRELLIX and End-Users in
substantially the forms attached hereto as Appendix "D", as such
forms may be amended by TRELLIX from time to time.
1.9 "First Tier Support" shall mean support services provided by VIA
NET.WORKS and Authorized Dealers to End-Users pursuant to a Support
Contract. In no event shall TRELLIX have any obligation to provide
First Tier Support.
1.10 "Hosting Fee" shall mean both the setup fee and the monthly hosting
fee actually received by VIA NET.WORKS from End-Users for Web
1.11 "Web Hosting" shall mean the hosting by VIA NET.WORKS on its or an
End User's storage device of an End-User Web Site created by the
Software and referred thereby by VIA NET.WORKS One Step Publish and
which web site continues to utilize the Software while resident on
such storage device, as determined by the Hosting Bounty Reporting
method of Schedule 1.
1.12 "VIA NET.WORKS One Step Publish" shall mean that feature of the
Software whereby the End-User posts the End Users Software-created
web site directly to a web hosting storage device for the Hosting
1.13 "Revision" shall mean any correction, bug fix, modification,
improvement, enhancement, update, upgrade, new version, or new
release of the Software provided by TRELLIX at it sole discretion.
1.14 "Second Tier Support" shall mean assistance provided by (i) TRELLIX
to VIA NET.WORKS or (ii) VIA NET.WORKS to an Authorized Dealer in
connection with VIA NET.WORKS or an Authorized Dealer's provision of
First Tier Support to End-Users.
1.15 "Statement of Work" shall mean the Statement of Work, if any, to be
delivered upon the determination by either party hereto that there
shall be necessary any modifications to the Software or any special
marketing or packaging requirements on the part of either party
hereto in order to fully perform this Agreement.
1.16 "Support Contract" shall mean an agreement between VIA NET.WORKS or
Authorized Dealer, as the case may be, and an End-User for First Tier
Support that conforms to TRELLIX's support policies and standards as
set forth in the attached Appendix "C", which agreement may be
incorporated as a part of the web-hosting services subscription
agreement between VIA NET.WORKS and the End-User, set out in a stand-
alone agreement between VIA NET.WORKS and the End-User, or form a
part of the End-User support policies generally adhered to by VIA
NET.WORKS and offered to End-Users as posted on the VIA NET.WORKS web
1.17 "Territories" shall mean the countries listed in the attached
Appendix "A".
1.18 "Third Person Assertion" shall have the meaning set forth in Section
11.2 hereof.
1.19 "Third Party Hardware" shall mean third party hardware upon which the
Software will be used and stored, as well as other hardware
peripherals manufactured by third party suppliers, which may be used
in connection with the Software.
2. LICENSE GRANTS
2.1 Subject to the terms and conditions of this Agreement, TRELLIX hereby
grants VIA NET.WORKS a nonexclusive, nontransferable right and
license to distribute the Software (in the form delivered to VIA
NET.WORKS, without modifications) to End-Users in the Territories
pursuant to the End-User License Agreement applicable to such
Software as specified in Appendix "B" attached hereto, including
distribution through web site downloads and `bundling' on media with
other software content.
2.2 Subject to the terms and conditions of this Agreement, TRELLIX hereby
grants VIA NET.WORKS a nonexclusive, nontransferable right and
license to use the Software product in the Territories to fulfill its
support obligations set forth in Section 8 hereof, and for
demonstrations connected with the promotion and marketing of Software
pursuant to Section 2.5 hereof.
2.3 Subject to the terms and conditions of this Agreement, TRELLIX hereby
grants VIA NET.WORKS a nonexclusive, nontransferable right and
license to make a reasonable number of copies of the Software as are
necessary for VIA NET.WORKS to exercise its rights under Sections 2.1
and 2.2 hereof. The right to copy shall not be sublicensed by VIA
NET.WORKS.
2.4 VIA NET.WORKS may sublicense the rights granted to it pursuant to
Sections 2.1, 2.2, and 2.3 hereof to Authorized Dealers who have been
previously identified to TRELLIX by VIA NET.WORKS, provided that each
such sublicense is made pursuant to a Dealer License Agreement, which
shall be subject to the consent and approval of TRELLIX (which shall
not be unreasonably withheld,) and which shall contain terms no less
favorable to TRELLIX as this Agreement (including, but not limited
to, the End User License Agreement of TRELLIX). VIA NET.WORKS shall
promptly provide TRELLIX with a copy of each Dealer License Agreement
proposed to be entered into between VIA NET.WORKS and an Authorized
2.5 The licenses granted to VIA NET.WORKS pursuant to this Section 2
shall include rights under any applicable patents, copyrights, and
trade secrets owned by TRELLIX, but only to the extent necessary to
give effect to such limited licenses. Except as specifically provided
for in this Agreement, VIA NET.WORKS shall not sublicense or permit
the sublicense of any of the rights granted to VIA NET.WORKS
hereunder. Without limiting the generality of the foregoing, in no
event may an Authorized Dealer distribute Software to any third party
other than an End-User as provided for in Section 2.1 hereof.
2.6 TRELLIX grants the rights set forth in this Section 2 to VIA
NET.WORKS on the express condition that VIA NET.WORKS undertakes to
use its commercially reasonable, consistent with good business
practice, to market and distribute the Software in the Territory.
2.7 VIA NET.WORKS understands and agrees that the operation of the
Software may require operating system software owned by third
parties, and that in certain instances it may be necessary for the
VIA NET.WORKS, Authorized Dealer, or End-User to enter into license
agreements with third parties with regard to such operating system
software in order to make use of the Software. Software of any third
party suppliers shall remain the property of their respective owners.
2.8 Whenever the term "sale" or "purchase" of the Software is referred to
in this Agreement, such reference shall be deemed to include the
purchase of an applicable license with respect to the Software, and
not be deemed to include the actual sale of the intellectual property
rights underlying the Software.
2.9 VIA NET.WORKS agrees that in the event of any breach of this Section
2, TRELLIX shall have no adequate remedy at law and therefore shall
be entitled to seek injunctive and/or other equitable relief, in
addition to any other remedies afforded by law.
3. RELATIONSHIP OF THE PARTIES
3.1 The relationship of TRELLIX and VIA NET.WORKS is that of independent
contractors, and it is expressly agreed that nothing contained herein
shall be construed to constitute the parties as a company , joint
ventures, co-owners, or participants in a joint or common
undertaking, or otherwise to create a relationship of principal and
agent, it being intended that each shall remain independent
contractors responsible for their own actions. Neither party shall
have the right to enter into contracts or pledge the credit of or
incur expenses or liabilities on behalf of the other party.
3.2 VIA NET.WORKS is not authorized to make any warranties or
representations with respect to the specifications, features, or
capabilities of the Software which are inconsistent with the
published literature distributed by TRELLIX and the terms and
conditions of this Agreement. In addition, VIA NET.WORKS is not
authorized to create any obligations or representations of
responsibility, express or implied, on behalf of TRELLIX or its
subsidiaries and affiliates.
3.3 TRELLIX is not authorized to make any warranties or representations
with respect to the specifications, features, or capabilities of the
Web Hosting which are inconsistent with the published literature
distributed by VIA NET.WORKS and the terms and conditions of this
Agreement. In addition, TRELLIX is not authorized to create any
obligations or representations of responsibility, express or implied,
on behalf of VIA NET.WORKS or its subsidiaries and affiliates.
3.4 Except as specifically provided for in this Agreement, VIA NET.WORKS
agrees that the rights and obligations granted herein do not extend
to its subsidiaries and affiliates, or any other third party.
3.5 VIA NET.WORKS shall in all marketing and promotion materials relating
to the Software clearly indicate that it is acting as an authorized
distributor of TRELLIX and shall not indicate that it is an author or
developer of the Software.
4. OBLIGATIONS OF VIA NET.WORKS
4.1 Except as set forth on Schedule I, VIA NET.WORKS shall assume all of
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its own costs associated with the marketing and distribution of the
4.2 VIA NET.WORKS agrees to use commercially reasonable efforts to
include the Software and reference to the Software capabilities in
efforts to market web-hosting services and to distribute the Software
in the Territories in accordance with the terms and conditions of
this Agreement.
4.3 VIA NET.WORKS shall not loan or lease the Software, except as
authorized in writing by TRELLIX. In addition, VIA NET.WORKS agrees
that it shall not make or have made any copies of the Software or
portions thereof, except as expressly provided for herein.
4.4 VIA NET.WORKS and its affiliates agrees that it shall not
disassemble, decompile, or reverse engineer any portion of the
Software, or permit any third party to do so, except as permitted by
applicable law and then solely to the extent that TRELLIX is not
permitted by such applicable law to exclude or limit such rights.
TRELLIX may provide to VIA NET.WORKS, upon written request, technical
information, including but not limited to Software interfaces and
API's, that is required to install or operate and maintain third
party software products which are functionally interconnectable with
the Software.
4.5 VIA NET.WORKS shall use the Software solely for the purposes set
forth in this Agreement, and shall allow access to the Software by
its employees and affiliates solely on a need to know basis. VIA
NET.WORKS agrees to notify TRELLIX promptly after it becomes aware of
any unauthorized access, disclosure, distribution, possession,
alteration, transfer, reproduction or other unauthorized use of the
Software or any portion thereof.
4.6 VIA NET.WORKS shall promptly inform TRELLIX of any use of TRELLIX's
trade names, trademarks or brand identification in violation of this
Agreement or violation of TRELLIX's intellectual property rights of
which VIA NET.WORKS becomes aware, and agrees to safeguard the
intellectual property rights and interests of TRELLIX at least to the
same extent it safeguards its own intellectual property rights and
4.7 VIA NET.WORKS shall be entitled to license the Software to its
Authorized Dealers and End-Users at such prices as it may determine
and, at the request of TRELLIX, agrees to provide TRELLIX with its
up-to-date price list for the Software.
4.8 VIA NET.WORKS shall not use in relation to the Software any
advertising, promotional and selling materials except as approved in
writing by TRELLIX, which such approval shall be deemed to have been
given if no objection in writing has been received by VIA NET.WORKS
within 5 business days of TRELLIX receipt of such information, and,
at the request of TRELLIX, agrees to provide TRELLIX with copies of
any such sales aids, including but not limited to catalogues, sales
brochures and sales manuals used in relation to the marketing and
distribution of the Software. Without limiting the generality of the
foregoing, in no event shall VIA NET.WORKS use or permit the use of
any trademarks or
tradenames of TRELLIX without the prior written consent of TRELLIX.
Any such use shall be subject to TRELLIX's trademark and tradename
VIA NET.WORKS guidelines, as such guidelines may be amended by
TRELLIX from time to time.
4.10 VIA NET.WORKS shall cause those subsidiaries of VIA NET.WORKS listed
in Schedule I attached hereto to display on their world wide web site
a hyperlink (in form mutually acceptable to the parties hereto) to be
utilized for Software download or referring web users directly to the
web site of the TRELLIX. Such web link shall contain TRELLIX's
tradename and trademark and shall be displayed on such web site's
4.11 VIA NET.WORKS and its affiliates shall display or cause to be
displayed prominently TRELLIX's trademark and tradename as it appears
on Schedule I in all advertising and marketing VIA NET.WORKS or its
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affiliates undertakes to promote and co-market the Software.
4.12 VIA NET.WORKS shall, to the extent permitted under VIA's policies
relating to the protection of user privacy and relevant laws,
including, but not limited to, the EU Directive on Data Protection
and the Electronic Communication Privacy Act, provide to TRELLIX (a)
the information relating to VIA NET.WORKS Web-Hosting End-Users
contained in the Schedule I, Section 1.1 and (b) such other
information relating to VIA NET.WORKS Web-Hosting End-Users as the
parties may from agree, including but not limited to name and e-mail
address; provided that no such information may be provided except
with respect to VIA NET.WORKS Web-Hosting End-Users who have agreed
that such information may be released by the VIA NET.WORKS subsidiary
to VIA NET.WORKS (U.S.) and to TRELLIX. TRELLIX agrees that all
information provided by VIA NET.WORKS or its subsidiaries pursuant to
this Section 4.12 shall be considered "Confidential Information" of
VIA NET.WORKS under Section 10 below. Under no circumstances shall
TRELLIX disclose any such information to any third party, nor shall
TRELLIX use any such information for any purpose other than to verify
and validate the billing information provided by VIA NET.WORKS to
TRELLIX, or such other purposes and under such conditions as may have
been expressly approved by the VIA NET.WORKS Web-Hosting End-Users in
granting consent to the use of the information. The parties
contemplate that VIA NET.WORKS will obtain approval from each End-
User for the information described in (a) above in the course of the
End-User's agreement to abide by the terms and conditions of service
provided by VIA NET.WORKS. Consent to use any additional information
such as that described in (b) above shall be obtained by specific
"check the box" approval by the End-User obtained during the process
of registering as a Web-Hosting End-User of VIA NET.WORKS.
5. OBLIGATIONS OF TRELLIX
5.1 Within ten (10) days from the Effective Date of this Agreement,
TRELLIX shall provide VIA NET.WORKS with (10) copies of technical
literature in the language prevailing in each of the VIA NET.WORKS
subsidiaries listed from time to time in Schedule I, to support VIA
NET.WORKS in marketing the Software hereunder. A reasonable number of
additional copies of TRELLIX marketing materials shall be provided at
no charge to VIA NET.WORKS by TRELLIX.
5.2 During the term of this Agreement, TRELLIX will:
(i) provide such assistance, including supplying maintenance patches or
code corrections, as necessary, to cause the Software to perform in
accordance with the applicable specifications for the most current
version of the Software ("Maintenance Patches") as set forth in the
Documentation provided to VIA NET.WORKS and as updated by TRELLIX
from time to time;
(ii) provide such improvements, enhancements, extensions, upgrades and
other changes to the Software which TRELLIX generally provides to
other licensees of the product ("Improvements");
(iii) supply, when necessary and as long as technically feasible, updated
software required to cause the Software to operate under new versions
or releases of the operating system or other system software on which
the Software operates ("Updates") so long as such Updates are made
generally available to TRELLIX's other customers; and
(iv) provide telephone support to VIA NET.WORKS in order to assist VIA
NET.WORKS to locate and correct functional or operational problems
with the Software.
(v) To the extent that TRELLIX, in its discretion, plans on issuing an
Update or Improvement which relates to the one-step publish feature
of the Software, TRELLIX shall provide VIA NET.WORKS with product
enhancement information together with a schedule of planned
availability dates, 7 days prior to the planned release of such
Update or Improvement to the Public; provided, however, that TRELLIX
may release to the public and to other partners any Maintenance
Patches at the same time such Maintenance Patches are released to VIA
NET.WORKS.
5.3 TRELLIX shall not by virtue of this Agreement be restricted or
otherwise precluded from making sales to End-Users, either directly
or through other resellers, distributors, OEMs and the like
representing TRELLIX.
5.4 At VIA NET.WORKS request and if required, TRELLIX may assist VIA
NET.WORKS in its sales activities. Any and all out-of-pocket and
expenses incurred by TRELLIX for such assistance shall be borne by
VIA NET.WORKS.
5.5 TRELLIX shall make reasonable modifications to the Software as may be
required for the Software to effectively achieve the VIA NET.WORKS
One Step Publish, such as extensions and the like.
5.6 TRELLIX shall cause to be displayed prominently on TRELLIX's world
wide web site a `hot link' (in form mutually acceptable to the
parties hereto) referring web users directly to the web site of the
VIA NET.WORKS.
5.7 TRELLIX will use its reasonable efforts to make functional
enhancements reasonably requested by VIA NET.WORKS and which the
parties hereto agree would be enhance the Software in a beneficial,
efficient and inexpensive manner
5.8 TRELLIX agrees that it shall inform all prospective Original
Equipment Manufacturers ("OEMs") who sell, distribute or market Third
party Hardware in the Territories or in any other countries other
than the U.S. that VIA NET.WORKS has operations and with respect to
which TRELLIX determines to initiate marketing and distribution of
the Software, of the web hosting services of VIA NET.WORKS and this
agreement between the parties hereto (but only to the extent
necessary to provide such OEM with information regarding VIA
NET.WORKS One Step Publish and other beneficial features of the
Software, if any, resulting from this Agreement). VIA NET.WORKS will
be identified as a premier personal web hosting companies and,
subject to the completion of an agreement between TRELLIX and such
OEM, will be given the opportunity to be a preferred `one-step
publishing' web hosting company for any bundled copies of the
Software or other web building product of TRELLIX to be bundled with
such OEMs product.
TRELLIX shall provide this information and such opportunity to such
OEM in the same manner as TRELLIX provides identical information to
such OEM for any other web hosting company of TRELLIX. It is
understood that TRELLIX is under no obligation to require such OEM to
agree to VIA NET.WORKS or any other web hosting company of TRELLIX.
It is further understood that TRELLIX shall have multiple web hosting
company and that the decision by an OEM to agree to one or another of
such company as the preferred `one-button' publishing' web hosting
company may be based on factors solely within the discretion of such
OEM and TRELLIX as they may mutually agree upon.
TRELLIX shall not make to any OEM any warranties or representations
with respect to VIA NET.WORKS or the specifications, features, or
capabilities of the VIA NET.WORKS web hosting. TRELLIX shall, at VIA
NET.WORKS request, deliver to any OEM on whose machines the
Software will be bundled, the end user terms of service which
contains VIA NET.WORKS disclaimer of warranty and shall request that
any such OEM acknowledge such end user terms of service.
6. TRADE SHOWS; MARKETING EFFORTS
6.1 TRELLIX and VIA NET.WORKS agree to consult each other regarding the
desirability of joint participation in trade shows and demonstration
6.2 VIA NET.WORKS and TRELLIX shall each be responsible for their own
out-of-pocket and travel expenses associated with such participation.
6.3 TRELLIX may provide a demonstration artist or technician to assist at
trade shows and demonstration seminars.
6.4 TRELLIX and VIA NET.WORKS agree to use commercially reasonable
efforts to engage in marketing efforts for the Software, which may
include web site coordination and other Internet efforts.
6.5 Upon signing of this Agreement, or at a time mutually agreed upon by
the parties hereto, TRELLIX and VIA NET.WORKS shall cooperate on the
drafting and issuance of a mutual press release relating to this
Agreement, such press release to be in form and substance mutually
acceptable to the parties hereto.
7. SUPPORT SERVICES
7.1 TRAINING
7.1.1 TRELLIX shall provide technical training for up to (6)
technical personnel of VIA NET.WORKS to help enable VIA
NET.WORKS to provide First Tier Support to End-Users and
Second Tier Support to Authorized Dealers. Such training shall
consist of not more than (2) days duration, shall be conducted
for no charge at the executive offices of TRELLIX, and shall
be held in accordance with a mutually agreed upon schedule.
VIA NET.WORKS shall be required to complete such training
within thirty (30) days after the receipt by VIA NET.WORKS of
the Software (provided that such period shall not run during
any time the Software requires any Maintenance Patches or
Updates). Training shall be provided at any other reasonable
location requested by VIA NET.WORKS for two days at a cost
payable to TRELLIX of $1,000 plus TRELLIX's reasonable out-of-
pocket and travel expenses associated therewith.
7.1.2 Any additional training requested by VIA NET.WORKS shall be
provided by TRELLIX at TRELLIX's sole discretion, and at
TRELLIX'S then prevailing charges, in accordance with a
schedule mutually agreed to between TRELLIX and VIA NET.WORKS.
7.1.3 VIA NET.WORKS shall in its sole discretion train each Authorized
Dealer on the use of the Software so that such Authorized Dealer
is enabled to provide First Tier Support to End-Users.
7.2 FIRST TIER SUPPORT
7.2.1 VIA NET.WORKS and/or its Authorized Dealers shall be responsible
for providing First Tier Support to End-Users with respect to
Software distributed pursuant to this Agreement or a Dealer
License Agreement. Any intentional failure to provide such
support shall be deemed to be a material breach of this
Agreement. In no event shall TRELLIX have responsibility to
provide First Tier Support.
7.2.2 VIA NET.WORKS shall take reasonable steps to insure that End-
Users are aware that any End-User support for Software
distributed pursuant to this Agreement or a Dealer License
Agreement shall be provided by either VIA NET.WORKS or an
Authorized Dealer.
7.3 SECOND TIER SUPPORT
7.3.1 TRELLIX shall provide Second Tier Support (which shall not
include TRELLIX support as described under Section 5.2 above) to
VIA NET.WORKS during the term of this Agreement, provided,
however, that TRELLIX's provision of Second Tier Support shall be
limited to reasonable telephone, E-mail, and/or facsimile
communication with VIA NET.WORKS during weekdays and TRELLIX's
normal business hours and during the normal business hours of
those subsidiaries of VIA NET.WORKS offering Web Hosting. If such
efforts are inadequate due to no fault of VIA NET.WORKS, TRELLIX
will then communicate directly with End-Users.
7.3.2 VIA NET.WORKS shall be responsible for any Second Tier Support
of Authorized Dealers, provided, however, that between the
Effective Date of this Agreement and the earlier of: (i) the
date that VIA NET.WORKS completes its training pursuant to
Section 7.1.1 hereof, or (ii) thirty (30) days after the
Effective Date, TRELLIX shall have the right, but no obligation,
to provide Second Tier Support to Authorized Dealers. To the
extent TRELLIX provides such Second Tier Support, it shall be
limited to reasonable telephone, E-mail, and/or facsimile
communication with an Authorized Dealer during weekdays and
TRELLIX's normal business hours.
7.4 Any support services other than as provided for in Sections 7.2 and
7.3 hereof may be provided at TRELLIX's sole discretion, and at
TRELLIX's then prevailing charges, in accordance with a schedule
mutually agreed to between TRELLIX and VIA NET.WORKS.
7.5 Any and all reasonable out-of-pocket expenses related to travel and
incurred by TRELLIX for the purpose of providing training or support
pursuant to this Section 7 shall be borne by VIA NET.WORKS.
8. PRICES, PAYMENT & AUDIT
8.1 For each copy of the Software VIA NET.WORKS or its subsidiaries
distributes, VIA NET.WORKS shall pay TRELLIX the royalty fee (the
"Product Royalty"), if any, as provided on Schedule I. VIA NET.WORKS
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shall pay to TRELLIX the "TRELLIX Hosting Bounty" set forth on
Schedule I. VIA NET.WORKS shall pay to TRELLIX within 30 days from
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the date hereof the participation fee (the "Participation Fee") set
forth on Schedule I.
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8.4 All prices for the Software distributed by VIA NET.WORKS hereunder
exclude sales, use, and VAT taxes, as well as other taxes, duties, or
charges which may be imposed upon VIA NET.WORKS by any governmental
8.5 For so long as VIA NET.WORKS shall be contractually obligated to make
payments pursuant to Section 8 hereof and for a period of six months
thereafter, VIA NET.WORKS and its subsidiaries shall keep at their
respective principal place of business adequate records for the
accurate determination of all payments due pursuant to this Agreement.
All the records books and server devices on which End-Users have
posted web sites of VIA NET.WORKS or its affiliates necessary for the
determination of such payments (subject to applicable privacy laws)
shall be made available during normal business hours upon no less than
three (3) business days notice during the term hereof and for a period
of six months thereafter for examination, inspection, and audit by
TRELLIX or duly authorized independent chartered accountants
designated by TRELLIX. No more frequently than once each 12 months
during the term of this Agreement and any extensions thereof, TRELLIX
and its chartered accountants shall be entitled to examine, inspect,
and audit the records and books of VIA NET.WORKS or its subsidiaries
which relate to the use by End-Users of the Software and server
devices on which End-Users have posted web sites to investigate all
business transactions that relate to the required payments hereunder.
VIA NET.WORKS hereby agrees to conduct its business (as it relates to
VIA NET.WORKS performance of this Agreement) in such a manner as to
reasonably facilitate the tracking
and record keeping necessary to properly determine in an orderly and
efficient manner all payments required h...
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